grievance. That grievance clearly stated that plaintiff had seen an EEO counselor and that he was filing a complaint. Tr. 16, 408-414; Def. Ex. 52. Under cross examination, Speidel admitted that he would have known that plaintiff had seen an EEO counselor and was filing a complaint. Tr. 413. Speidel subsequently admitted that since he had commented on this aspect of plaintiff's grievance, he obviously had known that it was one of plaintiff's concerns. Tr. 413; Def. Ex. 52. The record also reflects that Speidel knew that plaintiff had filed an EEO complaint prior to his formal rejection of plaintiff's quality step increase. Tr. 404-414; Pl. Ex. 15, 38.
21. On July 7, 1981, plaintiff filed a timely written charge of reprisal in connection with the filing of his sex discrimination complaint and a timely formal grievance alleging that Speidel's rejection of the recommendation constituted reprisal against plaintiff. Tr. 25-26, 33-34; Pl. Ex. 26, 32, 38.
22. In September, 1981, the agency denied plaintiff's allegations and rejected his March 4, grievance in response to which plaintiff filed a timely appeal. Tr. 19-21; Pl. Ex. 19.
23. Plaintiff subsequently appealed to the Office of Special Counsel, but that office claimed that its investigation of the manner in which the position was filled did not reveal any prohibited personnel practice and that the evidence did not suggest that management officials took reprisal against plaintiff. Tr. 24-25; Pl. Ex. 32.
24. On March 4, 1982, plaintiff appealed to the Merit Systems Protection Board (MSPB), but his appeal was dismissed for lack of jurisdiction. On August 25, 1982, plaintiff filed a Petition for Review with the MSPB, but it was denied on the same ground.
25. Plaintiff has never received a final agency decision with respect to his complaint of sex discrimination or his charge of reprisal. Tr. 15.
26. There was insufficient evidence that defendant denied plaintiff travel and assigned him only to terminating projects.
Conclusions of Law
1. Plaintiff's first cause of action is under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16. Thus, this court has jurisdiction over this case pursuant to that statute. Plaintiff alleges that defendant discriminated against him on the basis of sex when he was not selected for a GS-15 Division Chief position on January 28, 1981.
2. To establish a prima facie case of discrimination on the basis of disparate treatment, a "plaintiff must prove by a preponderance of the evidence that he applied for an available position, for which he was qualified, and that he was rejected under circumstances which give rise to an inference of unlawful discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981); Aikens v. U.S. Postal Service Bd. of Governors, 460 U.S. 711, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983); Ethnic Employees of Library of Congress v. Boorstin, 243 U.S. App. D.C. 186, 751 F.2d 1405, 1416 (D.C. Cir. 1985).
3. In reverse sex discrimination cases, the male plaintiff must also show that "background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority." Lanphear v. Prokop, 227 U.S. App. D.C. 89, 703 F.2d 1311, 1315 (D.C. Cir. 1983), quoting Parker v. Baltimore & O.R.R., 209 U.S. App. D.C. 215, 652 F.2d 1012, 1017 (D.C. Cir. 1981). If he meets that requirement and also shows that he was qualified for the position in question but was rejected in favor of a member of a protected class; he has met his burden of showing rejection "under circumstances which (despite the plaintiff's majority status) give rise to an inference of unlawful discrimination." Lanphear, 703 F.2d at 1315, quoting Burdine, 450 U.S. at 253, 101 S. Ct. at 1093. This Circuit has recently re-affirmed Lanphear in holding that such "background circumstances" existed in a race discrimination case involving D.C. firefighters where white plaintiffs showed that the city had an affirmative action plan, that both the Mayor and the Fire Chief were black, and that there was evidence of political pressure to promote the black firefighter over the white plaintiffs. Bishopp v. District of Columbia, 788 F.2d 781 (D.C. Cir. 1986).
4. If the plaintiff is successful, the burden shifts to the defendant to come forward with some legitimate, nondiscriminatory reason for its action. If the defendant does so -- and if his evidence is credible -- the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons advanced by the defendant are nothing more than a pretext for the discrimination asserted. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-02, 93 S. Ct. 1817, 1823-24, 36 L. Ed. 2d 668 (1976). A plaintiff may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256, 101 S. Ct. at 1095. Indeed, in some cases the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will be sufficient to discredit the defendant's explanation. Id. at 255, 101 S. Ct. at 1095.
5. This court holds that the evidence, as discussed above, indicates that plaintiff has not met his prima facie case. Although plaintiff applied for the position, was qualified and was rejected, there is no evidence which would create an inference of unlawful sex discrimination. There is evidence that defendant acted unlawfully, but no evidence, direct or circumstantial, that sex discrimination was a factor. Plaintiff failed to show that "background circumstances" supported the suspicion that defendant was the unusual employer who discriminated against the majority, white males. Thus, this case stands in contrast to the Bishopp decision, supra, in which plaintiffs showed that defendant District of Columbia had an affirmative action plan, that the Mayor and Fire Chief were minorities, and that there was political pressure to promote the minority. Thus, under the law of the circuit, the court must enter judgment in favor of defendant on plaintiff's sex discrimination claim.
6. Because the court holds that plaintiff failed to meet his prima facie case, the court need not decide whether defendant successfully established non-discriminatory reasons for selecting Dr. Clark.
7. Plaintiff's second cause of action is that he has been subject to reprisal for filing a complaint of discrimination. To make out a case of reprisal, a plaintiff must show that an adverse action was taken against him after he filed a complaint alleging employment discrimination. The employer must then show a legitimate, non-discriminatory reason for the action. The plaintiff can then demonstrate pretext by comparing "the employer's actual treatment of the particular employee with his or her actual treatment of other employees in like situations." Williams v. Boorstin, 213 U.S. App. D.C. 345, 663 F.2d 109, 117 (D.C. Cir. 1980).
8. The evidence in the record in this case showed that Dr. Speidel, the selecting official for the position which was the subject of plaintiff's discrimination complaint, rejected plaintiff's quality step increase. That rejection occurred after Speidel was aware of the complaint of discrimination and that rejection constitutes reprisal since Speidel approved two quality step increases for employees whose quality of work was similar to plaintiff's. Thus, the court will enter judgment in favor of plaintiff and against defendant on plaintiff's claim of reprisal based on the quality step increase. As discussed above, however, plaintiff failed to prove his claim of reprisal as to travel restrictions and work assignment.
9. Finally, plaintiff makes a constitutional claim. Plaintiff alleges that defendant's failure to implement its own rules in a meaningful way deprived plaintiff of a significant property interest, thereby violating his Fifth Amendment Due Process rights. However, Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 2406, 76 L. Ed. 2d 648 (1983) mandates rejection of plaintiff's constitutional claim. In Bush the Supreme Court stated:
Petitioner asks us to authorize a new non-statutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy.
Because plaintiff's Fifth Amendment claim, like the First Amendment Claim in Bush, arises out of the federal employment relationship which is governed by comprehensive procedural and substantive provisions giving meaningful remedies, the court holds that judgment should be granted to defendant on plaintiff's constitutional claims.
This matter came before the court at a trial held on February 3 - February 10, 1986. Having heard oral argument of counsel on April 14, 1986, and having reviewed the entire record herein, the accompanying Findings of Fact and Conclusions of Law are filed this day; and it is, this 6th day of June, 1986,
ORDERED that the parties shall file a proposed judgment in accordance with the accompanying Findings of Fact and Conclusions of Law no later than 10 days from the date of this order.
© 1992-2004 VersusLaw Inc.